Himachal Pradesh High Court
Mohammad Bilal vs State Of Himachal Pradesh on 6 December, 2023
IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA Cr.MPM No. 2482 of 2023 Reserved on: 28.11.2023 .
Date of Decision: 06th December, 2023 Mohammad Bilal ....Petitioner Versus State of Himachal Pradesh of ....Respondent Coram Hon'ble Mr Justice Rakesh Kainthla, Judge.
rt Whether approved for reporting? No. For the Petitioner : Mr. K.S. Gill, Advocate.
For the Respondent : Mr Jitender Sharma, Additional Advocate General for the respondent.
Rakesh Kainthla, Judge The petitioner has filed the present petition for seeking regular bail. It has been asserted that F.I.R.No. 90/21, dated 16.09.2021, was registered at Police Station Kala Amb, District Nahan, H.P. for the commission of offences punishable under Sections 363,366&376 of IPC and Section 6 of the Protection of Children from Sexual Offences Act (POCSO Act). The petitioner and victim were known to each other. They married each other. The victim also endorsed this fact in her statement Whether reporters of the local papers may be allowed to see the judgment? Yes ::: Downloaded on - 06/12/2023 20:34:55 :::CIS 2 recorded under Section 164 of Cr.P.C. The victim remained with the petitioner for about 18 months. The parents of the victim objected to the friendship between the victim and the petitioner.
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The F.I.R. was lodged against the petitioner at their instance. The petitioner has been behind the bars for about 1 year and till date no witness has been examined. The petitioner would join the of investigation and abide by all the terms and conditions, which may be imposed by the Court upon him. Therefore, it was prayed that the present petition be allowed and the petitioner be released rt on bail.
2. The petition was opposed by filing a status report. It was asserted that the father of the victim made a complaint that the victim was found missing on the intervening night of 15.09.2021/16.09.2021. The age of the victim was 13 years. The police conducted the investigation. The victim and the petitioner were recovered at Sikhri Palwal (Haryana). The statement of the victim was recorded under Section 164 of Cr.P.C. As per the birth certificate of the victim, she was born on 11.01.2008 and was aged 13 years 8 months and 5 days at the time incident. The police searched for the marriage record but could not find any record of the marriage. Since the victim was a minor; therefore, an offence ::: Downloaded on - 06/12/2023 20:34:55 :::CIS 3 punishable under Section 6 of the POCSO Act was added. As per the report of the analysis,the DNA of the victim was found on the Gamcha and used condoms. The DNA of the petitioner matched .
with the DNA picked from the underwear of the victim. As per the Medical Officer, there was nothing to suggest that sexual intercourse had not taken place. The challan has been prepared of and now the matter is listed for Consideration of Charge. On 26.12.2023. F.I.R No. 77 of 2018 has been registered against the petitioner. Hence, the status report.
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3. I have heard Mr. K.S. Gill, learned counsel for the petitioner and Mr. Jitneder Sharma, learned Additional Advocate General for the respondent-State.
4. Mr. K.S. Gill, learned counsel for the petitioner submitted that the petitioner is innocent and he was falsely implicated. He had married the victim and was residing with her as her husband. The victim initially refused to undergo a medical examination. She made a statement under Section 164 of Cr.P.C.
that she had disclosed her age as 21 years at the time of marriage.
Therefore, he prayed that the petition be allowed and the petitioner be released on bail.
::: Downloaded on - 06/12/2023 20:34:55 :::CIS 45. Mr. Jitender Sharma, learned Additional Advocate General submitted that there is no proof of marriage. The victim was a minor and incapable of consenting. Her statement that she .
was residing with the petitioner on her own will not help the petitioner. Therefore, he prayed that the present petition be dismissed.
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6. I have given considerable thought to the rival submissions at the bar and have gone through the records carefully.
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7. The parameters for granting bail were considered by the Hon'ble Supreme Court in Bhagwan Singh v. Dilip Kumar @ Deepu @ Depak, 2023 SCC OnLine SC 1059, wherein it was observedas under:-
"12. The grant of bail is a discretionary relief which necessarily means that such discretion would have to be exercised in a judicious manner and not as a matter of course. The grant of bail is dependent upon contextual facts of the matter being dealt with by the Court and may vary from case to case. There cannot be any exhaustive parameters set out for considering the application for a grant of bail. However, it can be noted that;
(a) While granting bail the court has to keep in mind factors such as the nature of accusations, severity of the punishment, if the accusations ::: Downloaded on - 06/12/2023 20:34:55 :::CIS 5 entail a conviction and the nature of evidence in support of the accusations;
(b) reasonable apprehensions of the witnesses being tampered with or the apprehension of .
there being a threat for the complainant should also weigh with the Court in the matter of grant of bail.
(c) While it is not accepted to have the entire evidence establishing the guilt of the accused beyond reasonable doubt but there ought to be always a prima facie satisfaction of the Court in of support of the charge.
(d) Frivolity of prosecution should always be considered and it is only the element of genuineness that shall have to be considered in rt the matter of grant of bail and in the event of there being some doubt as to the genuineness of the prosecution, in the normal course of events, the accused is entitled to have an order of bail.
13. We may also profitably refer to a decision of this Court in Kalyan Chandra Sarkar v. Rajesh Ranjan @ Pappu Yadav (2004) 7 SCC 528 where the parameters to be taken into consideration for the grant of bail by the Courts has been explained in the following words:
"11. The law in regard to grant or refusal of bail is very well settled. The court granting bail should exercise its discretion in a judicious manner and not as a matter of course. Though at the stage of granting bail a detailed examination of evidence and elaborate documentation of the merit of the case need not be undertaken, there is a need to indicate in such orders reasons for prima facie concluding why bail was being granted particularly where the accused is charged of having committed a serious offence. Any order devoid of such ::: Downloaded on - 06/12/2023 20:34:55 :::CIS 6 reasons would suffer from non-application of mind. It is also necessary for the court granting bail to consider among other circumstances, the following factors also before granting bail;
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they are:
(a) The nature of accusation and the severity of punishment in case of conviction and the nature of supporting evidence.
(b) Reasonable apprehension of tampering with the witness or apprehension of threat to the complainant.
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(c) Prima facie satisfaction of the court in support of the charge. (See Ram Govind Upadhyay v. Sudarshan Singh [(2002) 3 SCC 598: 2002 SCC (Cri) 688] rt and Puran v. Rambilas [(2001) 6 SCC 338: 2001 SCC (Cri) 1124].)"
8. A similar view was taken in State of Haryana vs Dharamraj 2023 SCC Online 1085, wherein it was observed:
7. A foray, albeit brief, into relevant precedents is warranted. This Court considered the factors to guide the grant of bail in Ram Govind Upadhyay v. Sudarshan Singh, (2002) 3 SCC 598 and Kalyan Chandra Sarkar v. Rajesh Ranjan, (2004) 7 SCC 528. In Prasanta Kumar Sarkar v. Ashis Chatterjee, (2010) 14 SCC 496, the relevant principles were restated thus:
'9. ... It is trite that this Court does not, normally, interfere with an order passed by the High Court granting or rejecting bail to the accused. However, it is equally incumbent upon the High Court to exercise its discretion judiciously, cautiously and strictly in compliance with the basic principles laid down in a plethora of decisions of this Court on the point. It is well settled that, among other circumstances, the ::: Downloaded on - 06/12/2023 20:34:55 :::CIS 7 factors to be borne in mind while considering an application for bail are:
(i) whether there is any prima facie or reasonable ground to believe that the accused .
had committed the offence;
(ii) nature and gravity of the accusation;
(iii) severity of the punishment in the event of conviction;
(iv) danger of the accused absconding or fleeing, if released on bail;
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(v) character, behaviour, means, position and standing of the accused;
rt (vi) likelihood of the offence being repeated;
(vii) reasonable apprehension of the witnesses being influenced; and
(viii) danger, of course, of justice being thwarted by grant of bail.'
9. The present case has to be decided as per the parameters laid down by the Hon'ble Supreme Court.
10. As per the status report, the date of birth of the victim was found 13 years 8 months and 5 days, therefore, it is duly proved that the victim was minor at the time of the incident.
11. As per the report of the analysis,the DNA of the victim and the petitioner was found on the Gamcha and used condoms recovered from the vehicle. The DNA of the petitioner matched with the DNA picked from the underwear of the victim. This ::: Downloaded on - 06/12/2023 20:34:55 :::CIS 8 report corroborates the prosecution's version that the petitioner had sexual relations with the victim.
12. It was submitted that the relationship was consensual.
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However, this submission is not acceptable because the victim was a minor and incapable of consenting.
13. The legislature enacted the POCSO Act to protect the of children from themselves as well as from others who are minded to prey upon them. (please see R v Corran [2005] EWCA Crim 192, rt para 6). The children are deemed to be incapable of consent and consent is no defence in the offences punishable under POCSO Act.
Dealing with the plea of consent under the Sexual Offences Act 2003 (which is almost similar to the POCSO Act but for the age, which is 13 under the Sexual Offences Act, 2003 and 18 under the POCSO Act), Baroness Hale of Richmondheld in R vs G [2008] UKHL 37 as under:
"44. Section 5 of the 2003 Act has three main features.
First, it singles out penetration by the male penis as one of the most serious sorts of sexual behaviour towards a child under 13; second, it applies to such penetration of a child under 13 of either sex; and thirdly it calls this "rape". This is its novel feature but it is scarcely a new idea. The offences of unlawful sexual intercourse under sections 5 and 6 of the 1956 Act were often colloquially known as "statutory rape". This is because the law ::: Downloaded on - 06/12/2023 20:34:55 :::CIS 9 regards the attitude of the victim of this behaviour as irrelevant to the commission of the offence (although it may, of course, be relevant to the appropriate sentence). Even if a child is fully capable of understanding and .
freely agreeing to such sexual activity, which may often be doubted, especially with a child under 13, the law says that it makes no difference. He or she is legally disabled from consenting.
45. There are a great many good reasons for this: see, eg, R v Hess; R v Nguyen [1990] 2 SCR 906, per McLachlin J. It is important to stress that the object is not only to of protect such children from predatory adult paedophiles but also to protect them from premature sexual activity of all kinds. They are protected in two ways: first, by the fact that it is irrelevant whether or not they want or rt appear to want it; and secondly, by the fact that in the case of children under 13, it is irrelevant whether or not the possessor of the penis in question knows the age of the child he is penetrating.
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54. In effect, therefore, the real complaint is that the appellant has been convicted of an offence bearing the label "rape". Parliament has very recently decided that this is the correct label to apply to this activity. In my view, this does not engage the Article 8 rights of the appellant at all, but if it does, it is entirely justified. The concept of private life "covers the physical and moral integrity of the person, including his or her sexual life"
(X and Y v The Netherlands, para 22). This does not mean that every sexual relationship, however brief or unsymmetrical, is worthy of respect, nor is every sexual act which a person wishes to perform. It does mean that the physical and moral integrity of the complainant, vulnerable by reason of her age if nothing else, was worthy of respect. The state would have been open to criticism if it did not provide her with adequate ::: Downloaded on - 06/12/2023 20:34:55 :::CIS 10 protection. This it attempts to do by a clear rule that children under 13 are incapable of giving any sort of consent to sexual activity and treating penile penetration as a most serious form of such activity. This does not in .
my view amount to a lack of respect for the private life of the penetrating male.
55. Even supposing that it did, it cannot be an unjustified interference with that right to label the offence which he has committed "rape". The word "rape" does indeed connote a lack of consent. But the law has disabled children under 13 from giving their consent. So there was of no consent. In view of all the dangers resulting from underage sexual activity, it cannot be wrong for the law to apply that label even if it cannot be proved that the child was in fact unwilling. The fact that the appellant rt was under 16 is obviously relevant to his relative blameworthiness and has been reflected in the second most lenient disposal available to a criminal court. But it does not alter the fact of what he did or the fact that he should not have done it. In my view, the prosecution, conviction and sentence were both rational and proportionate in the pursuit of the legitimate aims of the protection of health and morals and the rights and freedoms of others."
14. The argument that the minor had misrepresented her age and the accused was not liable, was repelled as under:
"He also commits an offence if he behaves in the same way towards a child of 13 but under 16, albeit only if he does not reasonably believe that the child is 16 or over. So in principle, sex with a child under 16 is not allowed. When the child is under 13, three years younger than that, he takes the risk that she may be younger than he thinks she is. The object is to make him take responsibility for what he chooses to do"::: Downloaded on - 06/12/2023 20:34:55 :::CIS 11
15. Dealing with the dangers of premature sexual activities, the Court held that:
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"Penetrative sex is the most serious form of sexual activity, from which children under 13 (who may well not yet have reached puberty) deserve to be protected whether they like it or not. There are still some people for whom the loss of virginity is an important step, not to be lightly undertaken, or for whom its premature loss may eventually prove more harmful than they understand at of the time. More importantly, anyone who has practised in the family courts is only too well aware of the long-term and serious harm, both physical and psychological, which premature sexual activity can do. And the harm rt which may be done by premature sexual penetration is not necessarily lessened by the age of the person penetrating. That will depend upon all the circumstances of the case, of which his age is only one."
16. Thus, the submission made by learned counsel for the petitioner that the relationship was consensual will not help the petitioner in any manner.
17. The petitioner claimed that he had married the victim but he has not produced any evidence in support of this fact. It was laid down by the Hon'ble Supreme Court in Independent Thought vs Union of India, 2017 (10) SCC 800, that having sexual intercourse with a wife aged less than 18 years is an offence.
Therefore, no advantage can be derived from the fact that the petitioner had married the victim.
::: Downloaded on - 06/12/2023 20:34:55 :::CIS 1218. It was submitted that the petitioner has been behind bars for the last one year. As per the status report the petitioner was arrested on 05.12.2022. The learned counsel submitted that .
till date no witness has been examined in the trial of the petitioner, however, as per the status report the case of the petitioner is listed for consideration of charge on 26.12.2023. The of petitioner has not filed any order sheets to show the delay is attributable to the prosecution and not to him. Therefore, the petitioner cannot be released on bail on the grounds of delay.
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19. Keeping in view the nature of the act, the petitioner is not entitled to be released on bail; hence, the present petition fails and the same is dismissed.
20. The observations made hereinabove are regarding the disposal of this petition and will have no bearing, whatsoever, on the merits of the case.
(Rakesh Kainthla) Judge 06th December,2023 (Ravinder) ::: Downloaded on - 06/12/2023 20:34:55 :::CIS